The D.C. Circuit could lose one of its judges during the next presidential term if the President is called on to fill a Supreme Court vacancy. Judge Merrick Garland is frequently named as a possible second term SCOTUS appointee for President Obama, and Judges Brett Kavanaugh and Janice Rogers Brown have both appeared on lists of possible Romney appointees in recent months. Continue reading →

Judge Garland’s latest opinion has something for everyone: helicopters and horses, ambushes and duels, AK-47s and six-shooters, Afghanistan and the Old West, a barroom brawl and the Erie doctrine [pdf]. If that is not enough, the opinion’s star-studded cast features Gary Cooper, Allen Iverson, the Taliban, and a military contractor who was shot five times and lived to sue for negligence.

The panel’s fact-based questioning in Friday’s oral argument in Suleiman v. Obama, No. 10-5292, “hint[ed] at a likely affirmance, grounded on the sufficiency of the evidence underlying [Judge] Walton’s factual findings,” wrote Wells C. Bennett at Lawfare. Suleiman’s counsel, Thomas Sullivan of Jenner & Block, argued that the AUMF does not give the Government detention authority over a Taliban member on the basis of his Taliban membership alone. Questions by Judge Griffith and Judge Garland suggested Suleiman forfeited this argument by failing to raise it in the district court, and the Government agreed with that assessment. Moreover, Judge Tatel‘s questioning pointed out that the district court’s decision to deny habeas was based not just on Taliban membership but on the court’s findings about Suleiman’s presence near the battlefield and in Taliban guesthouses.